Emoluments Clauses of the U.S. Constitution

November 2, 2018, Update:

Mr. Trump’s attempt to stay the proceedings in The District of Columbia and Maryland vs. Donald Trump was denied by Judge Messitte. Below are excerpts from his opinion.

The President has filed a Motion for Leave to Appeal (Interlocutory) and for a Stay Pending Appeal the Court’s rulings, ECF No. 127, which Plaintiffs oppose. As part of the relief he requests, the President asks the Court to stay any and all discovery pending his appeal, again over Plaintiffs’ objection.

The Court has reviewed the President’s Motion and, for the reasons that follow, will DENY it. His Motion for a Stay pending any appeal will also be DENIED. (pg. 3)

It bears noting that the President himself appears to have had little reluctance to pursue personal litigation despite the supposed distractions it imposes upon his office. See, e.g., Order, Cohen v. United States, No. 18-3161 (S.D.N.Y. Apr. 13, 2018) (granting the President’s motion to intervene in litigation); see also, e.g., Michael D. Shear & Eileen Sullivan, Trump and Giuliani Taunt Brennan About Filing a Lawsuit, N.Y. Times, Aug. 20, 2018 (President inviting lawsuit against himself), (pg. 29)

November 2, 2018

October 12, 2018 Update:

In Richard Blumenthal v. Donald Trump ” Plaintiffs, approximately 201 minority Members of the 535 Members of the United States Senate and House of Representatives, allege that Donald J. Trump in his official capacity as President of the United States (“the President”) is violating the Foreign Emoluments Clause (“Clause”).” (pg 2)

On September 28, 2018, Judge Emmet G. Sullivan of the United States District Court in Washington D.C. ruled that the plaintiffs have standing to sue Mr. Trump.

Below are excerpts from Judge Emmet Sullivan’s decision:

The President’s purported legislative remedies are clearly inadequate within the meaning of Raines. Raines, 521 U.S. at 829 (legislative remedy must be an “adequate” remedy). (pg. 44)

Here, by contrast, legislation on the emoluments issue does not provide an adequate remedy. First, in asking this Court to accept the proposition that legislation on the emoluments issue would be an adequate remedy, the President asks this Court to ignore this constitutional Clause. The Court may not do so. See Marbury, 1 Cranch at 174 (“It cannot be presumed that any clause in the constitution is intended to be without effect . . . .”). The Clause is unambiguous: acceptance is prohibited without “Consent.” U.S Const. art. I, § 9, cl. 8. The Clause therefore places the burden on the President to convince a majority of Members of Congress to consent. The legislation suggested by the President flips this burden, placing the burden on Members of Congress to convince a majority of their colleagues to enact the suggested legislation. This is not what the Clause requires. (pg. 45)

Furthermore, and in contrast to the situation in Chenoweth and Campbell, Congress’ appropriations power cannot be used to obtain a legislative remedy, such as refusing to appropriate funds for an Executive Branch program or for participation in a war, because there are no federal appropriations associated with the President’s receipt of prohibited foreign emoluments. (pg. 46)

Plaintiffs seek declaratory relief in the form of a declaratory judgment stating that the President is violating the Clause when he accepts emoluments from foreign states without first seeking the consent of Congress, and injunctive relief in the form of an order from the Court enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of Congress.” (pg. 56)

Accordingly, the Court finds that plaintiffs have standing to sue the President for allegedly violating the Foreign Emoluments Clause. The Court therefore DENIES IN PART the motion to dismiss and DEFERS ruling on the remaining arguments in the motion to dismiss. An appropriate Order accompanies this Memorandum Opinion. (pg. 57 & 58)
Signed: Emmet G. Sullivan
United States District Judge
September 28, 2018

July 25, 2018 Update:

There is another pending civil case in the United States District Court for the District of Maryland against Donald Trump for violations of the Foreign and Domestic Emoluments Clauses of the U.S. Constitution, Article I Section 9 ,cl. 8 and Article II Section 1, cl. 7. The case is The District of Columbia and Maryland vs. Donald Trump, the Honorable Peter J. Messitte. On Wednesday, July 25, 2018, Judge Messitte denied Mr. Trump’s motion to dismiss.

Below are excerpts from Judge Peter L. Messitte’s decision:

The Foreign Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, provides that “no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (pg. 1, footnote 3)

The Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7, provides: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (pg. 1, footnote 3)

Of particular importance in the present suit is the President’s ownership, through the Trump Organization, of the Trump International Hotel in Washington, D.C. (the Hotel).

The Hotel is a five-star, luxury hotel located on Pennsylvania Avenue, N.W., in Washington, near the White House. While the President does not actively manage the Hotel, through the Trump Organization, he continues to own and purportedly controls the Hotel as well as the bar and restaurant, BLT Prime, and the event spaces located within the establishment. Directly or indirectly, the President actually or potentially shares in the revenues that the Hotel and its appurtenant restaurant, bar, and event spaces generate. (pg. 3)

The Court is satisfied, consistent with the text and the original public meaning of the term “emolument,” that the historical record reflects that the Framers were acutely aware of and concerned about the potential for foreign or domestic influence of any sort over the President. An “emolument” within the meaning of the Emoluments Clauses was intended to reach beyond simple payment for services rendered by a federal official in his official capacity, which in effect would merely restate a prohibition against bribery. The term was intended to embrace and ban anything more than de minimis profit, gain, or advantage offered to a public official in his private capacity as well, wholly apart from his official salary. (pg. 39)

Based on the foregoing, the Court finds that the Amended Complaint states plausible claims against the President under both the Foreign and Domestic Emoluments Clauses. (pg. 49)

In sum, Plaintiffs have plausibly alleged that the President has been receiving or is potentially able to receive “emoluments” from foreign, the federal, and state governments in violation of the Constitution: They have stated viable claims for relief under both the Foreign and Domestic Emoluments Clauses. Accordingly, the President’s Motion to Dismiss is DENIED insofar as it pertains to the claims which the Court has determined Plaintiffs have standing to pursue, viz., that the President may have violated the Foreign and Domestic Emoluments Clauses of the Constitution insofar as he is involved, directly or indirectly, with the Trump International Hotel in Washington, D.C. (pg. 51)